Ellen Cleary vs Jeffrey Draper et al

Plaintiff alleges that Draper “repeatedly brought up that she would be the first female Deputy Director, and that she could be raped or taken hostage merely because she was a woman,” and repeatedly made comments about Plaintiff’s perceived age, which he believed to be over 40. (Ibid.) Draper also engaged in harassing conduct towards Plaintiff that was based on her religious orientation. (FAC, ¶¶ 28-31.)

Almost immediately after starting work, Plaintiff began experiencing gender-based harassment at her job site from defendant Neto, a co-worker, which included him making “repeated, condescending, and demeaning comments to Plaintiff solely because she was a woman, saying things like “make me a sandwich,” and engaged in insubordinate behavior such as refusing to do the work Plaintiff assigned to him and speaking over Plaintiff during an “All Hands” meeting where, among other things he said to those present that Plaintiff had a “cackle like Kamala Harris.” (FAC, ¶ 13.) Neto’s behavior made it very difficult for Plaintiff to perform her job and caused her a great deal of anxiety and discomfort. (Ibid.) Walker was aware of Neto’s conduct, and it was “participated [in], encouraged, facilitated, and/or ratified” by Draper. (Ibid.)

Plaintiff first reported the gender-based harassment to Human Resources (“HR”) personnel, some of whom had witnessed said harassment against Plaintiff. (FAC, ¶ 14.) Plaintiff subsequently reported the harassment to the County’s Equal Opportunity Division (“EOD”), and the later, the EOD’s Whistleblower Hotline. (Id., ¶ 15.) The County ignored Plaintiff’s initial complaint to the EOD, and she had to raise the issue again on eight separate occasions. (Id., ¶ 16.) The County refused to investigate, offering various excuses for failing to do so. (Id.)

The EOD eventually took steps to address Plaintiff’s complaint when the Chief Operating Officer became involved, and the County “provided a written acknowledgment that defendant Neto’s actions were violations of the County’s Policy Against Discrimination, Harassment, and Retaliation.” (Id., ¶¶ 17-18.) Despite the County’s acknowledgment of Neto’s conduct, it allowed Neto to continue coming to work at the same location as Plaintiff. (Id., 19.) The County’s failure to place Neto on administrative leave culminated in a screaming fit by him towards Plaintiff and, subsequent to that, him approaching her husband with a razor in the work parking lot. (Ibid.)

Plaintiff’s reporting of the incident was ignored, with Plaintiff 11

being told that her husband was not an employee. (Ibid.) Draper and Walker were aware of Neto’s conduct but did nothing to prevent it, and Draper actually “proceeded to fight to have Neto reinstated to work despite Plaintiff and the Director of Security and Labor Relations expressing concerns for Plaintiff’s safety.” (Ibid.)

Neto was belatedly put on administrative leave, but Draper repeatedly misinformed Plaintiff on his return-to-work status. (FAC, ¶ 20.) Neto later returned while he was supposed to be on leave (and before any investigation). Draper and Walker were assigned to investigate but refused to do so. (Id.)

The County also failed or refused to address additional harmful incidents directed towards Plaintiff, including her office window being smashed and surrounded by a suspended employee’s family and Plaintiff’s car having to be bomb checked due to the director of security's threat assessment. (FAC, ¶ 21.) Neto also violated the confidentiality of the EOD investigation. (Ibid.)

Plaintiff was systematically retaliated against by Defendants, particularly Draper, every time she reported conduct that violated the County’s policies and the law. (FAC, ¶¶ 22, 23, 26, 27.) Once Draper became aware that Plaintiff had reported gender-based harassment, his actions towards her were even more openly hostile until her employment was terminated on August 30, 2024. (Id., ¶ 24.) Plaintiff alleges that she was terminated for false and pretextual reasons. (Id., ¶¶ 32-36.)

Based on the foregoing, Plaintiff initiated this action with the filing of the Complaint in July 2025, and filed the operative FAC on March 9, 2026, asserting the following causes of action: (1) gender and religious discrimination (against the County) and harassment and retaliation in violation of FEHA (against all defendants); (2) age discrimination in violation of FEHA (against the County and Draper); (3) breach of the covenant of good faith and fair dealing (against the County); (4) failure to prevent discrimination, harassment and retaliation in violation of FEHA (against the County); (5) retaliation in violation of Labor Code § 1102.5 (against the County); (6) retaliation in violation of Gov. Code, § 8547, et seq. (against the County); and (7) intentional infliction of emotional distress (“IIED”) (against all defendants).

On April 9, 2026, Defendants filed the instant demurrer to the FAC and each of the claims asserted therein on the ground of failure to state facts sufficient to constitute a cause of action.3 (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff opposes the motion.4

Defendants first assert that its demurrer to Plaintiff’s first cause of action should be sustained for the following reasons: (1) supervisors cannot be held individually liable for discrimination or retaliation under FEHA; (2) Plaintiff’s allegations do not amount to religiousbased discrimination; and (3) Plaintiff fails to state a claim for harassment against Draper and Walker.

3 In the notice of motion, Defendants also state that they demurrer to the FAC on the ground of uncertainty. (Code Civ. Proc., § 430.10, subd. (f).) However, no argument is submitted in support of this ground, and therefore the demurrer on the ground of uncertainty is OVERRULED. 4 Defendant’s request for judicial notice of Plaintiff’s claim filed with the County is GRANTED. (Evid. Code, § 452, subds. (c) and (h).) The Court notes that it has not taken judicial notice of the truth of the contents of this claim. Plaintiff’s request for judicial notice is also GRANTED. (Evid. Code, § 430.10, subds. (d) and (h).) 12

Defendants’ first argument can easily be dispensed with. While Defendants are correct that individual supervisory employees cannot be held personally liable for discriminatory or retaliatory conduct under FEHA (see Reno v. Baird (1998) 18 Cal.4th 640, 647-655 (Reno), the contents of the first cause of action make clear that only the portion of the claim relating to harassment is being asserted against Draper and Walker. Further, even if this was not the case, i.e., it was not clear, the Court could not sustain Defendants’ motion on this basis because a demurrer does not lie to only part of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 (PH II, Inc.).)

Turning to Defendants’ second argument, to plead a prima facie case of religious discrimination, a plaintiff must allege facts that demonstrate: (1) he holds a “bona fide religious belief, the practice of which conflicted with an employment duty; (2) he informed the employer of that belief and conflict; and (3) the employer threatened the employee with or subjected him to discriminatory treatment, including discharge, because of an inability to fulfill the job requirements. (E.E.O.C. v. AutoNation USA Corp. (9th Cir. 2002) 52 Fed.App’x 327, 329.)

Defendants assert that Plaintiff has failed to plead allegations which suggest a discriminatory motive on their part based on Plaintiff’s religious creed. They explain that there are no allegations of discriminatory conduct or commentary by Walker or Neto centered on Plaintiff’s religion, nor are there allegations that Draper was aware that she was Jewish, with Plaintiff merely setting forth a single comment allegedly made by him during a phone call that Jewish people were “greedy and sneaky.” (FAC, ¶¶ 28-29.)

As stated above, Defendants cannot demur to only part of a cause of action, and because they have not challenged the entirety of the first cause of action as to the County (i.e., the retaliation portion), the Court cannot sustain the demurrer on this basis.

Finally, Defendants assert that Plaintiff’s harassment claim fails as to Walker and Draper because “nearly all” of her allegations against them entail everyday personnel decisions that cannot form the basis for a harassment claim, and comments that allegedly occurred outside of that were not so severe as to alter the conditions of her employment or create an abusive work environment sufficient to support a claim for harassment cause of action. The Court does not find this argument persuasive. While Defendants are correct that personnel decisions “such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment” (Reno, supra, 18 Cal.4th at 646-647), the Court believes that Plaintiff’s allegations, when viewed in toto, establish a hostile work environment on the parts of Walker and Draper, including comments made to her by them and their failure to respond to her complaints or treatment by Neto.

Given the foregoing, Defendants’ demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Defendants next argue that Plaintiff’s fourth cause of action for failure to prevent discrimination and harassment fails because her preceding claims for retaliation, harassment and discrimination fail for the reasons set forth above. While it is true that a prerequisite to a finding of liability for the failure to take all reasonable steps is a finding that the plaintiff 13

actually suffered unlawful discrimination, harassment, or retaliation (see Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282-283; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021), as the Court has overruled Defendants’ demurrer to the preceding claims for retaliation, harassment and discrimination, it follows that their demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is also OVERRULED.

Next, Defendant maintains that Plaintiff cannot state a claim for age discrimination because she was not over the age of 40. Under FEHA, it is unlawful for an employer to discriminate against a person because of age. (Gov. Code, § 12940, subd. (a).) A plaintiff is in a protected class for purposes of an age discrimination lawsuit if he or she is 40 years of age or older. (Gov. Code, § 12926, subd. (b); McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 978.) Plaintiff is admittedly not 40 years old but argues that she was perceived to be and discriminated against on that basis.

But she cites no case authority which supports this theory of liability, only a publication from the California Civil Rights Department, which itself is devoid of any binding case support. In order to establish a prima facie case of age discrimination, a plaintiff must establish that he or she was 40 years of age or older at the time of the alleged adverse employment action was taken against the employee. (Marquez v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1116.) In the absence of any authority to the contrary, Defendants’ demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

As for the third cause of action, Defendant contends that Plaintiff has not stated a claim for breach of the implied covenant of good faith and fair dealing because she was an at-will employee. The Court agrees.

Because the implied covenant of good faith and faith dealing cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of the employment agreement, terminating an at-will employee whose employment is not governed by contract generally cannot give rise to a valid claim for breach of the implied covenant. (See Horn v. Cushman & Wakefield West, Inc. (1999) 72 Cal.App.4th 798, 817-820.) While it is the case that, regardless of whether an employee is at will, an employer cannot violate the antidiscrimination/harassment/retaliation provisions of FEHA, “that does not mean FEHA imbues at-will employees with any contractual due process rights” or other contractual rights in connection with their employment. (See Nakai v.

Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 42.) Plaintiff’s reliance on Kuhn v. Department of Gen. Service (1994) 22 Cal.App.4th 1627 (Kuhn) does not save her claim.

In Kuhn, there was no discussion of at-will status and its effect on the plaintiff’s ability to state a claim for breach of the implied covenant and further, the case involved a decision to terminate an employee pursuant to a medical termination statute, Government Code section 19253.5, which created “terms and conditions” of employment that implied good faith and fair dealing—i.e., that the parties would follow the requirements of that statutorily defined reinstatement procedure for the plaintiff who was a probationary employee. (Kuhn, supra, 22 Cal.App.4th at p. 1637 [discussing Gov.

Code §§ 19173, 19175.].) Here, Plaintiff identifies no similar statutory rights that would affect the basic presumption of at-will employment “that an employer may terminate its employees at will, for any or no reason.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 350.” Accordingly, the Court finds that Plaintiff has not stated a 14

claim for breach of the implied covenant of good faith and fair dealing and Defendants’ demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants next assert that their demurrer to the sixth cause of action should be sustained because Government Code section 8547.8 does not apply to County employees. In her opposition, Plaintiff states her agreement to remove this claim from her pleading. Therefore, Defendant’s demurrer is MOOT as to the sixth cause of action.

Defendant argues that Plaintiff’s remaining whistleblower claim under Government Code section 1102.5 (“Section 1102.5”) fails because it is untimely. According to Defendants, the claim Plaintiff submitted to the County to satisfy the claims presentation requirement of the Government Claims Act is untimely “as to the vast majority of the conduct alleged in the FAC,” and there was no timely claim filed as to conduct occurring on or after August 19, 2024, the only time period in which unlawful conduct was still be actionable.

“Under the [Government Claims] Act [the “Act”], no person may sue a public entity or public employee for ‘money or damages’ unless a timely written claim has been presented to and denied by the public entity.” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) In order to be timely, the claim generally must be presented to the particular entity within six months of accrual of the injury. (A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1257.) Absent an applicable exception, “failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing suit against that entity bars a plaintiff from filing a lawsuit against that entity.” (State of California v.

Superior Court (2004) 32 Cal.4th 1234, 1239.) “The complaint should allege the presentation and rejection of a claim in all actions to which the claims procedures apply. ... Failure to allege compliance with Tort Claims Act requirements is a ground for demurrer.” (Van Alstyne, California Government Tort Liability Practice (4th ed. 2007) §5.5, p. 173 citing Govt. Code, §§ 905, 905.2, 945.4; §8:40, 432-433 citing Chase v. State (1977) 67 Cal.App.3d 808; State v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

“Claims for personal injury must be presented not later than six months after the accrual of the cause of action ....” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118.) “Accrual for purposes of the Act is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.” (Ibid.) A plaintiff must then commence his or her lawsuit within six months of notice of rejection of the claim. (Gov. Code, §§ 913, 945.6; Code Civ. Proc., § 342; Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.) “The failure to timely present a claim to the public entity bars the claimant from filing a lawsuit suit against that public entity.” (California Restaurant Management System v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591.)

According to Defendants, while Plaintiff contends she “timely delivered a government claims form” to the County (FAC ¶¶ 42, 48, 63, 79), documents that are properly subject to judicial notice establish that she submitted a government claim on February 19, 2025, which was rejected on March 21, 2025 based, in part, on untimeliness, as Plaintiff sought relief for events occurring more than six months prior. (Defendants’ Request for Judicial Notice (“RJN”), Exhibits A and B.) Defendants continue that on August 7, 2025, Plaintiff applied to present a late claim pursuant to Government Code section 911.4, and the County rejected that application on August 12, 2025, with Plaintiff taking no further action. (RJN, Ex. C-D.) Thus, 15

Defendants urge, based on the February 19, 2025 submission date, only conduct allegedly occurring on or after August 19, 2024 (six months prior) is actionable, which means that to the extent Plaintiff’s Section 1102.5 claim is predicated on her placement on administrative leave and/or any of the action/inaction taken by her supervisors or other County employees prior to August 19, 2024, there was no timely government claim filed, and the section 1102.5 claim must fail as to that time frame.

Defendants may well be correct that much of the conduct alleged in the Section 1102.5 claim is untimely but, once again, a demurrer does not lie to only part of a cause of action, and she has alleged conduct which falls within six months of the submission of her tort claim to the County, namely, her termination. Consequently, Defendants’ demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Lastly, Defendants urge that their demurrer to Plaintiff’s IIED claim should be sustained because (1) the County is immune from the claim, which is also time-barred; and (2) Plaintiff fails to state sufficient facts.

In order to state a claim for intentional infliction of emotional distress (‘IIED’), a plaintiff must plead: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1609, internal citations and quotations omitted.) In order for conduct to be considered outrageous for the purpose of tort liability, it “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

This claim is asserted against all defendants. Defendants are correct that under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; such liability must be based on statute. (See Gov. Code, § 815, subd. (a); Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.) However, as Plaintiff responds, courts have recognized that there is not blanket immunity for a public entity on an IIED claim; Government Code section 815.2, subdivision (a), provides that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” “This section imposes upon public entities vicarious liability for the tortious acts and omissions of their employees.” (Legislative Committee Comment to Gov.

Code, §815.2; see also Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932 (Hoff).) Thus, an employee of a public entity is liable for his torts to the same extent as a private person and the public entity is vicariously liable for any injury which its employee causes to the same extent as a private employer. (See Gov. Code, §§ 820, subd. (a), 815, 815.2, subd. (a); Hoff at 932.) Here, Defendants fail to demonstrate that the individual defendants are immune from liability for their own actions committed in the course and scope of their employment, and thus the Court will not sustain the demurrer on this basis.

As for timeliness, Plaintiff’s IIED claim is based in part on her termination which, as stated above, is not untimely. Therefore, the Court also will not sustain the demurrer on this basis.

With regard to Defendants’ remaining argument, the Court believes that Plaintiff has sufficiently pleaded extreme and outrageous conduct by the individual defendants when the FAC is considered in total, including but not limited to allegations concerning someone throwing a rock through Plaintiff’s window (FAC ¶21), Plaintiff’s husband being approached by defendant Neto while wielding a razor (FAC, ¶ 19) and Draper’s reckless disregard for the danger that Plaintiff was placed in and apparent amusement of the same (FAC, ¶¶ 21, 84). Consequently, Defendants’ demurrer to the seventh cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

The Court will prepare the final order.

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